The Supreme Court's decision on affirmative action at the University of Michigan may have some negative results for academic freedom. The court approvingly cited Powell's Bakke concurring opinion where he cites "academic freedom" as one reason for the decision--essentially endorsing institutional academic freedom as a reason for courts not to interfere in academic decisions. This makes some sense, although the idea that educators have anything to do with college admissions is a joke. Unfortunately, Powell's decision--and soon this new one--have been used by courts to undermine academic freedom by appealing to the concept of "institutional academic freedom," most notably in Urofsky v. Gilmore. Basically, the idea of courts is that universities can infringe on the academic freedom of students and faculty because "institutional academic freedom" prevails.

My view on the Michigan decisions is that the court got the decision right in both cases. Oddly, I found myself agreeing strongly with Clarence Thomas on the undergraduate case, where he noted that it was unconstitutional "because it does not sufficiently allow for the consideration of nonracial distinctions among underrepresented minority applicants." He's talking about the fact that Michigan gave 20 points to minorities, and 20 points to poor whites/Asians, but no extra benefit to poor minority applicants--in essence, Michigan wants black kids from white suburbs, not the ones from Detroit. By giving economic disadvantage consideration only for whites, Michigan was engaging in illegitimate racial discrimination.

Unfortunately, Thomas went back to his usual conservative nonsense in the law school case: "These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition. And this mismatch crisis is not restricted to elite institutions." Thomas cites Sowell's discredited mismatch theory (see my book, The Myth of Political Correctness, for an explanation of why they're wrong). According to Thomas, "While these students may graduate with law degrees, there is no evidence that they have received a qualitatively better legal education (or become better lawyers) than if they had gone to a less 'elite' law school for which they were better prepared." Of course, there's no evidence to the contrary. In fact, there's no evidence you can have about such a speculative thing at all. But that should be for the students to decide, not Thomas. Logically, if black students are worse off for attending the UMichigan law school, they'll choose not attend it. Doesn't Thomas believe in the free market? Of course, the benefits of going to Michigan law school (like other elite schools) have nothing to do with the quality of education there. The benefit is from the name of the school and the networking with the elite. The idea that Michigan is too hard and other law schools easy enough for black students is nonsense.

John Wilson
www.collegefreedom.org
collegefreedom@yahoo.com